Judge orders 16-year-old girl can remain at Shelby County Jail East pretrial

Teriyona Winton, 16, testifies about being held at a women's prison in Nasvhille. She is charged with killing 17-year-old Deago Brown in Memphis. Her lawyers said she was transferred to the Tennessee Prison for Women when she was 15.
The Commercial Appeal

Over the objections of Shelby County attorneys, a Memphis girl charged with murder may remain at Shelby County Jail East pretrial, a judge reluctantly said in a written ruling Thursday afternoon. (Full ruling below)

Teriyona Winton had been in limbo between adult facilities amid attorneys' arguments over solitary confinement and where to properly house children accused of adult crimes.

Criminal Court Judge Mark Ward said this week he had two bad choices for housing the 16-year-old — Shelby County’s Jail East or the Tennessee Prison For Women in Nashville.

Winton, charged with killing 17-year-old Deago Brown in Binghamton, has spent time at both facilities, and was being held in Jail East this week.

Winton is charged as an adult in the April 3 death of Brown in the 300 block of Tillman Street. The Shelby County District Attorney's office said that, according to investigators, Winton is accused of walking up to the victim outside a grocery store and shooting him once in the head.

According to court records, she said in an interview with police that a 27-year-old man asked her to kill Brown, put a gun in her hand and said "don't miss."

A memorial sits outside the corner store on Tillman, where 17-year-old Deago Brown was shot and killed in Binghamton.(Photo: Mark Weber/The Commercial Appeal)

She was 15 when she was arrested and transferred to the women's prison in Nashville, Winton's attorney Josh Spickler said.

During hearings this week, Ward asked Winton and her lawyers which of the two facilities she would rather choose. Ward said the women's prison in Nashville appeared to be safer with better living conditions and quality of life, such as a television in her room.

"This court was fully prepared to allow Ms. Winton to choose to be housed in the TDOC facility," Ward said.

But the refusal to choose effectively placed her back in the custody of the sheriff, Ward said, as he granted her legal filling to cancel her transfer to TDOC.

Arguments over where Winton should be held involve Tennessee law requiring juveniles to be “separate and removed” from adult detainees and federal standards prohibiting “sight and sound” contact with adults inmates.

Her lawyers also are arguing that isolating her in solitary confinement is unconstitutional.

At the women's prison in Nashville, “(She) spends her days isolated and alone in a cell the size of a walk-in closet,” Spickler said in a release to the media. “Like many teenage girls, she likes to read young adult fiction, and she loves to sketch. But when she leaves that cell for a shower or a trip to the gym, her hands and feet are shackled.”

A red sign indicating a juvenile is housed there hangs over a cell where Teriyona Winton was housed at the Tennessee Prison for Women. While at the prison, she showered three days a week, and teachers instructed her through the flap in her door.(Photo: Just City)

Spickler, the director of the criminal justice reform advocacy group Just City, said she did not receive visitors there besides two lawyers. She made calls to her mother and siblings that cost $12 per hour, he said.

“These conditions could hardly be worse for a teenage girl,” he said. “Everything we know about brain development, youth detention, and rehabilitation warns us against isolation like this. Throw in the adult maximum security protocol that is being used on her, and this young woman is living a nightmare. A developing brain cannot tolerate this treatment. Perhaps the worst part: she has not been convicted of anything.”

The room where Teriyona Winton was housed at the Tennessee Prison For Women in Nashville.(Photo: File photo/Commerical Appeal)

Winton was ordered transferred to the women’s prison in Nashville in October.

This week, Winton has been back in Memphis — housed at Jail East — for court appearances for the hearings about her housing.

In a phone call held over speaker phone in court, Gloria Gross, warden at the Tennessee Prison For Women, said Winton’s cell at the prison in Nashville contained a bed, desk with a chair, shelf, television with a cable box and a window.

“She possibly can, but we keep the noise level at a minimum,” Gross said, adding that the adults have no direct conversations with Winton.

Anytime Winton is moved out of her cell in Nashville, she is shackled with handcuffs and leg irons, and all adult offenders are locked down and secured behind their door, Gross said.

Spickler inquired if the conditions are “appropriate” for the juvenile girl.

“That’s not for me to say,” Gross said. “I mean, we have policies and procedures and guidelines and according to, you know, her status as a safe keeper, that’s what we do,” Gross said, referencing the Tennessee law that allows transfer of inmates due to insufficient county jails.

In his court ruling, Ward said that "insufficient" and "sufficient" have vague meaning in the state law.

"The terms, however, do not equate with unconstitutional conditions," he said.

Winton testified that at the women’s prison she spent one hour a day on Tuesdays and Thursdays for recreation and gym, and was allowed 30-minute showers on Monday, Wednesday and Friday. During the weekends, she spent 24 hours a day in her room and only ate breakfast and dinner, no lunch, Winton said.

Gross said Winton also had recreation on Monday, Wednesday and Friday and a counselor was assigned to see her daily.

She had educational instruction Monday through Friday for two hours on opposite sides of her cell door.

“They have to teach me through the small slot in my door,” Winton said.

Deago Brown at the Carpenter Art Garden a week before he was shot and killed in Binghamton.(Photo: Photo submitted by Erin Harris)

She said she heard “a lot of screaming” and witnessed a woman throwing a garbage can last week.

Winton’s mother, Latosha Winton, said she would like her daughter to be with peers her own age.

Kathryn Sinback, court administrator at Juvenile Court of Metropolitan Nashville and Davidson County, said she learned of Winton’s case and became very concerned about the circumstances of her confinement at the women’s prison. She contacted the Tennessee Department of Correction and the Shelby County Attorney’s Office.

Davidson County's facility for juveniles, operated by Youth Opportunity Investments is open to housing Winton, according to testimony this week. They have a facility with special programming for girls, face-to-face education, daily recreation, a restorative justice program, yoga, visual arts, literary arts and culinary arts, Sinback said. Winton would only be shackled during transportation. Shelby County would have to pay a per diem which costs about $294.

However, Davidson County did not seem a viable option this week in court. Ward said state law allows him to transfer her to another adult facility, not a juvenile facility.

“The two choices I've got (Jail East or the Tennessee Prison For Women) are not very good,” Ward said in court.

Full order below:

ORDER ON MOTION TO RECONSIDER SAFEKEEPING TRANSFER

This matter is before this Court on the Defendant's Motion to Vacate this Court's previous Order dated October 4, 2017, transferring Teriyona Winton to the Tennessee Department of Corrections for safekeeping, pursuant to Tenn. Code Ann. § 41-4-121.

This Court treated the Motion to Vacate as a Motion to Reconsider and set the matter for evidentiary hearings. After multiple hearings and argument, the Court has decided in the exercise of its discretion, to order that Ms. Winton remain in the custody of the Sheriff of Shelby County to be held for trial as an adult in an adult detention facility.

This Court does so reluctantly, as it does not feel that it is in her best interest, but feels compelled by law to grant her request to vacate the order of October 4, 2017.

Tenn. Code Ann. § 41-4-121(c) provides: "In all cases where the jail in which a prisoner is confined becomes insufficient from any cause, any circuit or criminal judge, upon the application of the sheriff and proof of the fact, may order the prisoner by mittimus or warrant, to be removed to the nearest sufficient jail." This statute is generally titled "Safekeeping of Prisoners." Under this statute the terms "insufficient" and "sufficient" have vague meaning. The terms, however, do not equate with unconstitutional conditions. Tenn. Atty Gen. Opinion No. 89-65, 1989 WL 434585, (April 28, 1989) made it abundantly clear that a jail is not necessarily operating unconstitutionally because it has been deemed "insufficient" for purposes of this statute.

After consideration of both the previous Petition filed by the Shelby County Sheriff on October 4, 2017, and the evidence and argument presented in conjunction with the Motion to Vacate/Reconsider, this Court concludes that the Shelby County Jail is "insufficient" only to the extent that the Sheriff is unable to fully comply with the mandate to keep the minor child, Teriyona Winton "separate and removed from adult detainees."

Tenn. Code Ann. § 37-1-134(I). "Separate and removed" has not been clearly defined.

Based upon this perceived inability to fully comply with the separate and removed criteria, and in the interest of the child's safety, the Sheriff, on October 4, 2017, sought this Court's permission to transfer Ms. Winton to the Department of Corrections for Safekeeping based upon assurances that the Department could fully comply with the requirements to keep the child separate and removed from adults. In the hearings on the Motion to Reconsider, the Sheriff continues to seek to have the child held by the Tennessee Department of Corrections, arguing that it is better suited and can comply with the separate and removed criteria, and provides a safer environment.

After the evidentiary hearings conducted in conjunction with the motion to reconsider/vacate, it appears from the evidence that the Tennessee Department of Corrections [TDOC], in the detention facility to which Ms. Winton was assigned after the initial transfer, is also "insufficient" only to the extent that the Warden is unable to fully comply with the mandate to keep the minor child, Teriyona Winton "separate and removed from adult detainees."

Despite this finding, the evidence before this Court clearly showed that the TDOC placement came closer to satisfying the "separate and removed" requirements, was a much safer place for Ms. Winton, and offered her better living conditions. As such, this Court fully agrees with the Sheriff's assessment that TDOC provides a safer environment for Ms. Winton. The Sheriff should be commended for seeking the original transfer and in continuing to seek that transfer for the safekeeping of Ms. Winton. Nevertheless, because Tenn. Code Ann. § 41-4-121(c) only allows a safekeeping transfer to a "sufficient" jail, Ms. Winton is entitled, by a strict application of the law, to have this Court's previous Order of October 4, 2017, vacated as she has requested in her Motion, the result of which is her return to the Shelby County Jail for detention as an adult.

In the course of these hearings it became evident to this Court that under the state of the law, at present, this Court had only two possible placements for Ms. Winton, the Shelby County Jail and TDOC. Further, this Court heard testimony about the capacities of both facilities and listened with a hope that this Court could not only follow the law but place Ms. Winton in the better of the two available options, i.e look after the best interest of the child. Recognizing that the TDOC placement offered, what appeared to this court safer and better living conditions, and, in general a better quality of life, but recognizing that this is subjective, this Court offered to allow Ms. Winton and her counsel to choose which of the two possible placements [Shelby County Jail or TDOC] she wanted to be housed pending her trial. Ms. Winton has spent time in both and was in the best position to determine which she preferred. Ms. Winton and her counsel refused to make a choice. Accordingly, honoring Ms. Winton's prayer in her pleading, the order of transfer to the TDOC is vacated, and Ms. Winton will remain in the custody of the Sheriff of Shelby County to be held for trial as an adult in an adult detention facility. This Court was fully prepared to allow Ms. Winton to choose to be housed in the TDOC facility, but by her refusal to choose, this court felt constrained to honor her written request to vacate the prior order, the effect of which was to place her back in the custody of the Shelby County Sheriff.

The request of Ms. Winton for this Court to Order the Sheriff to transfer her to the Davidson County Juvenile Detention Center is denied. The Sheriff does not have the authority to transfer a prisoner in Ms. Winton's situation to any juvenile detention facility. For that matter the Sheriff has no authority to transfer any prisoner of any kind anywhere. Any criticism of the Sheriff in this matter is misplaced and based upon ignorance. A sheriff only follows the orders of the court. All the sheriff in this case has done is obey the court orders and attempt to find a safer and better placement for Ms. Winton.

Likewise, this Court has no power or authority to transfer Ms. Winton to any juvenile detention facility. Tenn. Code Ann. § 37-1-134(i) specifically deals with the detention of a juvenile after transfer from juvenile court for trial as an adult in criminal court. As currently worded section (i) has two sentences. The first sentence deals exclusively with the authority of the juvenile court regarding detention upon transfer of a child for adult prosecution. That sentence reads:

"When a child transferred under this section is detained, the juvenile court may, in its discretion, order confinement in a local juvenile detention facility, or a juvenile detention facility with which it contracts or an adult detention facility separate and removed from adult detainees."

The second sentence deals exclusively with the authority of the criminal or circuit court regarding detention upon transfer of a child for adult prosecution. The second sentence reads, in part:

"The court having adult criminal jurisdiction may thereafter order detention in an adult detention facility separate and removed from adult detainees;..."

It is clear to this Court, based on the plain reading of this statute, but also upon basic principles of statutory construction, that the legislature has limited the power of the circuit or criminal court to ordering confinement in an "adult detention facility". This Court has no power, authority or jurisdiction to order a child transferred from juvenile court detained in a juvenile detention facility.

It is significant that a prior version of section (i) provided:

"[w]hen a child transferred from juvenile court to adult criminal court is detained pending trial, such detention shall be in an adult detention facility separate and removed from adult detainees. Unless the court having adult criminal jurisdiction orders otherwise, the juvenile court may, in its discretion, order confinement in a juvenile detention facility pending trial." (Emphasis added).

Under this previously worded version of the statute, the Tennessee Attorney General was asked to give an opinion as to whether the criminal court with adult jurisdiction had the power to compel or order a juvenile transferred for trial as an adult held in a juvenile detention facility. The Attorney General opined:

"Neither subsection (i) nor any other statute gives the criminal court authority to order a juvenile transferred from juvenile court to be held in a juvenile detention facility. While subsection (i) provides that the criminal court may "order otherwise," such phrase means that the criminal court may object to the juvenile court's ordering the transferred juvenile to a juvenile detention facility rather than an adult detention facility. [citation omitted] While the power to countermand such an order of the juvenile court clearly rests with the criminal court, we do not read the phrase "orders otherwise" to mean the criminal court may order a transferred juvenile to be held in a juvenile detention facility rather than an adult detention facility."

Tenn. Op. Atty Gen, No. 05-121, 2005 WL 2215827 (July 29, 2005).

Of further significance, is the fact that after the Attorney General rendered the above opinion, subsection (i) was amended to its current form, which eliminates the "orders otherwise" language and specifically lists the authority of the criminal court to order confinement in an adult detention facility. This amendment more clearly continued the scheme that the criminal court can overrule the decision of the juvenile court to place the child in a juvenile detention facility, but has no power to overrule the juvenile court and place the child in a juvenile detention facility. The legislature is presumed to know the state of the law when it makes an amendment to a statute. In response to the attorney general opinion, the legislature could have granted the power to the criminal court, but instead it took action to clarify that the criminal court had no such power.

Therefore, the "plain reading" of the subsection (i), the interpretation of it by the Attorney General, and the legislative history, all support an interpretation that a criminal court has no authority to order a transferred juvenile to a juvenile detention facility.

To take it one step further, multiple rules of statutory construction support such an interpretation. According to one such rule, the inclusion in the list of powers granted to juvenile courts in the first sentence to order juvenile detention, while excluding that power in the second sentence, raises a presumption that such power was not intended to be bestowed on a criminal court judge.

Finally, the decision of the legislature to place the power of juvenile detention in the hands of the transferring juvenile court judge makes common sense. The juvenile judge is most familiar with the child, having conducted the transfer hearing. The juvenile judge has heard the witnesses who testified as to the facts of the crime. The juvenile judge is also more familiar with the juvenile detention facility and its capacities and limitations. Simply put, it makes common sense that juvenile detention would be decided by the juvenile judge.

Ms. Winton's argument that somehow Tenn. Code Ann. § 41-4-121(c) overrides the limitation of Tenn. Code Ann. § 37-1-134(i) that a criminal court judge can only order confinement in an adult detention facility is not persuasive. First, Ms. Winton offers no legal support for the argument. Second, multiple principles of statutory construction are against any such interpretation. For instance, this Court does not believe that the two statutes are in conflict, but, solely for sake of argument, if they were in conflict, elementary rules of statutory construction provide that a specific statute controls over a general statute. Tenn. Code Ann. § 37-1-134(i) applies to the specific and limited situation of juvenile detainees transferred for trial as adults. Tenn. Code Ann. § 41-4-121(c) applies to jail prisoners generally. Following this rule of statutory construction Tenn. Code Ann. § 37-1-134(i) trumps. Likewise, assuming for sake of argument that the two statutes are in conflict, which they are not, another elementary rule of statutory construction is that the most recently passed statute prevails over the older statute. Tenn. Code Ann. § 37-1-134(i) dates back to the Code of 1858, with its last amendment in 1932. Tenn. Code Ann. § 37-1-134 had its origins in 1970, and its last amendment in 2011. Following this rule of statutory construction, Tenn. Code Ann. § 37-1-134(i) trumps. I could go on and on with these rules of statutory construction, but the important point is that Ms. Winton cites no rule of statutory construction in favor of her interpretation.

Finally, the interpretation that Ms. Winton asks this curt to adopt, i.e. that Tenn. Code Ann. § 41-4-121(c) trumps the specific language of Tenn. Code Ann. § 37-1-134(i) which prohibits a criminal court judge from ordering a transferred juvenile into a juvenile detention facility would lead to absurd results. If this argument was accepted, by the same logic, every time the Shelby County Jail became overcrowded then this Court could order the adult inmates housed in a juvenile detention facility.

To summarize, Ms. Winton's has provided no legal argument that supports an interpretation that this Court has the power to order a juvenile transferred for trial as an adult to be held in a juvenile detention facility. On the other hand, there is legal authority that this court does not have that power, in the form of the plain reading of the statute, the opinion of the Tennessee Attorney General, the legislative history of the statute, basic principles of statutory construction, and common sense.

IT IS THEREFORE ORDERED THAT the previous order of this Court dated October 4, 2017 is vacated and Ms. Winton is to remain in the custody of the Sheriff of Shelby County to be housed in an adult detention facility in accordance with the law pending her trial in Criminal Court.